1. The standard of review for district courts as well as for appellate courts in zoning
appeal cases is set forth and applied.

2. Where the focus of the zoning authority shifts from the entire city or county to
one specific tract of land for which a zoning change is urged, the function of the
zoning authority becomes more quasi-judicial in nature than legislative. In such
quasi-judicial proceedings, it is incumbent upon the authority to comply with the
requirements of due process. Thus, the proceedings must be fair, open, and
impartial. A denial of due process renders the resulting decision void.

3. The factors in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d
130 (1978), have become standard considerations throughout Kansas by those
charged with the responsibility of voting on zoning changes. However, the
Golden factors are suggestions, and other factors may be equally or more
important factors depending on the circumstances of the particular case.

4. In a quasi-judicial proceeding case involving a claim of prejudgment by the
decisionmaker, prejudgment statements of the decisionmaker are not fatal to the
validity of the zoning determination as long as the statements do not preclude the
finding that the decisionmaker maintained an open mind and continued to listen
to all the evidence presented before making the final decision.

5. When ex parte contacts are present in the context of quasi-judicial zoning
decisions such as variances and special use permits, courts will be more receptive
to challenges to decisions on grounds of zoning bias.

6. Where a zoning authority has merely denied a requested expansion of the
existing right to use the property, there is not a taking under the Fifth
Amendment to the United States Constitution following the failure to rezone.

7. One seeking relief under 42 U.S.C. § 1983 must satisfy the following two
requirements: (1) Some person must deprive the plaintiff of federal rights; and
(2) that person must have acted under color of state or territorial law.

Mark Buck, of Fairchild & Buck, P.A., of Topeka, argued the cause, and
Nathan Burghart, of
the same firm, was with him on the brief for appellant.

Jonathan C. Brzon, assistant county counselor,argued the
cause, and Richard V. Eckert, county
counselor, and Shawn S. Leisinger, assistant county counselor, were with
him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.: The Shawnee County Board of Commissioners (Board) denied
McPherson Landfill, Inc.'s (MLI) application for a conditional use permit (CUP) to establish
and operate a construction and demolition (C&D) landfill. MLI petitioned the district court
for
judicial review. MLI appeals from the district court's summary judgment in favor of the
Board. Our jurisdiction is based upon K.S.A. 20-3018(c) by transfer of this case from the
Kansas Court of Appeals.

MLI addresses two major concerns in this appeal. The first concern relates to
the fairness of the process before the Board and MLI's contention that two of the three
members of the Board prejudged its CUP application; the second concern is based upon MLI's
contention that the Board's decision to deny the permit was arbitrary and unreasonable.
Although MLI raises other concerns which will be addressed in this opinion, the two above
contentions are critical to its success before this court.

Standard of Review

Before we begin with a discussion of the facts and arguments of the parties, it is
helpful to understand how this court reviews and determines the above issues, as well as other
issues in this case. In zoning appeals, the standard of review for district courts as well as for
this court is set forth in Combined Investment Co. v. Board of Butler County
Comm'rs, 227
Kan. 17, 28, 605 P.2d 533 (1980):

"(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse
to
change, zoning.

"(2) The district court's power is limited to determining

(a) the lawfulness of the action taken, and

(b) the reasonableness of such action.

"(3) There is a presumption that the zoning authority acted reasonably.

"(4) The landowner has the burden of proving unreasonableness by a preponderance of the
evidence.

"(5) A court may not substitute its judgment for that of the administrative body, and should
not
declare the action unreasonable unless clearly compelled to do so by the evidence.

"(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without
regard
to the benefit or harm involved to the community at large, including all interested parties, and
was so wide of the mark that its unreasonableness lies outside the realm of fair debate.

"(7) Whether action is reasonable or not is a question of law, to be determined upon the basis
of
the facts which were presented to the zoning authority.

"(8) An appellate court must make the same review of the zoning authority's action as did the
district court."

With regard to our review of MLI's first contention involving procedural
fairness, this court has decided that where the focus of the zoning authority shifts from the
entire city or county to one specific tract of land for which a zoning change is urged, the
function of the zoning authority becomes more quasi-judicial in nature than legislative. In such
quasi-judicial proceedings, it is incumbent upon the authority to comply with the requirements
of due process in its proceedings. Thus, the proceedings must be fair, open, and impartial. A
denial of due process renders the resulting decision void. Suburban Medical Center v.
Olathe
Community Hosp., 226 Kan. 320, 330-32; 597 P.2d 654 (1979); see Johnson County
Water
Dist. No. 1, 255 Kan. at 190-91; Golden v. City of Overland Park, 224 Kan.
591, 597, 584
P.2d 130 (1978); Adams v. Marshall, 212 Kan. 595, 599-602, 512 P.2d 365 (1973);
Kansas
Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P.2d 572 (1967).

Finally, with regard to MLI's second contention that the ultimate decision was
unreasonable, this court in Golden observed:

"A mere yes or no vote upon a motion to grant or deny [a request for zoning
change] leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis
the board took its action. A board, council or commission, in denying or granting a specific
zoning change, should enter a written order, summarizing the evidence before it and stating the
factors which it considered in arriving at its determination." 224 Kan. at 597.

As a suggestion to zoning authorities, the Golden court enumerated eight
factors
which address the question of whether a final decision is reasonable. 224 Kan. at 598. The
Golden factors have become standard considerations throughout Kansas by those
charged with
the responsibility of voting on zoning changes. However, the following Golden
factors are
suggestions and other factors may be equally or more important factors depending of the
circumstances of the particular case:

"(1) The character of the neighborhood;

"(2) the zoning and uses of properties nearby;

"(3) the suitability of the subject property for the uses to which it has been restricted;

"(4) the extent to which removal of the restrictions will detrimentally affect nearby property;

"(5) the length of time the subject property has remained vacant as zoned;

"(6) the gain to the public health, safety, and welfare by the possible diminution in value of
the
developer's property as compared to the hardship imposed on the individual landowners;

"(7) The recommendations of a permanent or professional planning staff; and

The Board based its denial of the requested CUP largely upon consideration of
the Golden factors. The district court applied theeight principles of
review contained in
Combined Investment, as well as the eight Golden factors, in reviewing
the Board's decision
and in granting summary judgment to the Board. Consistent with the above standard of review,
we are called upon to make the same review of the Board's action as did the district court.
Applying the above principles, we must decide whether the Board's CUP denial was consistent
with due process and reasonable. We are not free to make findings of fact independent of those
found by the Board but are limited to determining whether the given facts could reasonably
have been found by the Board to justify its decision. See Golden, 224 Kan. at
595-96.

Facts

MLI is a wholly owned subsidiary of McPherson Wrecking, Inc (MWI). Virgil
McPherson is the president of both MLI and MWI. Scott McPherson is the Vice President of
MLI. Unless otherwise noted, Virgil McPherson and Scott McPherson will be collectively
referred to as the McPhersons. The McPhersons became interested in property owned and
operated as a quarry by Martin Marietta. After an attempted sale of its property to Shawnee
County, Martin Marietta, Inc., primarily through Shawnee County contacts, urged the
McPhersons to purchase the property for the operation of a C&D landfill.

A C&D landfill is designed to handle solid waste resulting from the construction,
remodeling, repair, and demolition of structures, roads, sidewalks, and utilities. A C&D
landfill does not accommodate such waste materials as friable asbestos, garbage, furniture,
appliances, electrical equipment containing hazardous materials, tires, drums, and containers
even though such wastes resulted from construction and demolition activities. See K.S.A. 2001
Supp. 65-3402(u).

Background information leading to the McPhersons' purchase

Joe Voth, an employee of Shawnee County who worked in solid waste
management, explained the McPhersons' interest and eventual purchase from Martin Marietta.
In deposition testimony, Voth said that between 1994 and 1999 there were two potential sites in
Shawnee County for a C&D landfill. The first site was at 45th Street and Stubbs Road,
which
was later sold by the county to Martin Marietta and used as a limestone quarry. The second
site and the property at issue in this case was at 29th Street and Ratner Road. According to
Voth, this property was similar to a "lunar landscape," and nothing could grow on 75% to 80%
of the property.

Voth said old quarries are suitable for landfills because the quarrying operation
removes material until "impervious shale or hard limestone" is reached, which creates a "good
preparation for the construction of a landfill." Voth, who believed the existing landfills in
Shawnee County were becoming full, suggested to the county that the 29th Street and Ratner
Road property was a candidate for a landfill. As refuse director for Shawnee County, Voth
knew that once other locations were full, C&D waste would have to be taken out of county
at a
huge expense and deposited elsewhere.

Voth discussed with Bill Gahan, a Martin Marietta representative, a proposal for
Shawnee County to purchase the property. Martin Marietta had a conditional use permit to
operate a quarry at the 29th Street and Ratner Road property. Its quarry activities at this
location dated back to the 1950's. While the active quarrying process discontinued in 1993,
Martin Marietta continued to ship large amounts of stone through 1995, and then smaller
amounts until 1998.

Voth said that the traffic generated by a C&D landfill would have been less than
that generated by Martin Marietta's quarry. According to Voth, no concern was expressed at
that time by county officials that there would be any threat to school children or risk of life if
the 29th Street and Ratner Road property was used as a C&D landfill.

Martin Marietta offered to sell the property to the county for $850 per acre, but
the county rejected that proposal. When Voth realized the county would not purchase the
property, he proposed that the McPhersons purchase the property. Voth talked with the
McPhersons and introduced them to Martin Marietta representatives. Voth advised the
McPhersons that there were no guarantees that the Board would grant a permit to operate a
C&D landfill.

Before the purchase of the property from Martin Marietta, Voth scheduled a
meeting for the McPhersons to meet with Barry Beagle and John Dugan, who were both
employees of the Topeka-Shawnee County Metropolitan Planning Agency (Planning Agency), a
joint agency of the City of Topeka and Shawnee County. Neither Beagle nor Dugan expressed
any concern that the operation of a C&D landfill would violate the current or any future
zoning
plan or disrupt growth patterns. Voth explained why, in his opinion, there was no cause for
concern: "[B]ecause the use, current use and the past use of that tract of ground was a quarry
and quarry activity is under the same, if I recall correctly, conditional use permit as is a
landfill. So, the use would not have been different."

MWI, the parent corporation of the plaintiff, MLI, purchased 678 acres from
Martin Marietta at a cost of $850 an acre, less than the original asking price of about
three-quarters of a million dollars. Scott McPherson said he believed the C&D landfill would
generate $7.2 million over the lifetime of the landfill. Virgil McPherson said in his deposition
that he chose the location because of what Martin Marietta said about the land having been used
as a quarry. Virgil admitted that there had been no blasting or grinding on the property since
1993.

MWI tried but failed to make the deal with Martin Marietta contingent on its
successful zoning application to establish and operate a C&D landfill. Approximately 45
acres
were carved out of the 678 acres purchased from Martin Marietta and sold to MLI. MLI paid
less than $10,000 for the 45 acres.

It was the McPhersons' opinion at that time that the Planning Agency staff was
favorable to the MLI application. However, Scott McPherson did say that no one on the
Planning Agency staff promised a favorable recommendation to MLI's application. No one
characterized the application as a "done deal." The McPhersons believed the members of the
planning staff were very encouraging with respect to the application.

Application

MLI applied to the Planning Agency on March 6, 2000, for a permit to operate a
C&D landfill. Following a conference with the Planning Agency staff, the McPhersons
added
some documentation to their application, including evidence of necessary permits from various
county and state offices. The McPhersons hired an engineering firm to make some "additional
erosion drawings, reclamations, depth of indentations and a lot of other studies that had not
been initially submitted." The McPhersons estimated the additional work cost between $10,000
and $20,000. The McPhersons submitted a revised application on June 9, 2000, including
numerous exhibits to support its application. The McPhersons believed there was enough
support for the application prior to the July 19, 2000 committee meeting.

Evidence presented to the Zoning and Platting Committee and the Board

Tim Paris, a planner for the Planning Agency, told the McPhersons that it would
be difficult to obtain a CUP for a C&D landfill. His written report on the property was
submitted to the Topeka-Shawnee County Metropolitan Planning Commission's Zoning and
Platting Committee (Committee) and the Board. Paris noted that the subject property in its
current condition was not suitable for redevelopment. In order to develop the land, the
property would have to be subjected to a reclamation process to remove deposits of silts and
residues, and a further regrading of the topsoil process to "establish suitable ground for further
construction activity."

The report also noted the following regarding the expected traffic:

"The applicant is expecting to generate an average of 25 additional vehicle trips
per day to the site for deposit of construction and demolition debris. This average is subject to
seasonal fluctuation, ranging from 16 trips per day in January to a high of 32 trips per day in
October. The Shawnee County Public Works Department has granted heavy truck certification
and approval for the proposed truck route to and from the proposed landfill site."

Paris also noted a concern for increased traffic based on increased residential growth and
travel
to and from such schools as Shawnee Heights High School, Shawnee Heights Middle School,
and Tecumseh Elementary School. His report noted the Topeka- Shawnee County Growth
Management Plan called for more urbanization in the area.

In conclusion, the Paris report recommended denial of the CUP application,
concluding:

"8. As residential development in this area continues to grow, the significance of SE 29th
Street
as an arterial street will increase significantly.

"9. The introduction of regular truck traffic along this stretch of road will undoubtedly
increase
the timeframe governing the reconstruction of SE 29th Street to meet arterial street standards.

"10. Based on the classification of SE 29th Street as a minor arterial road, the current
condition
of this road appears to be substandard on order to meet the current and projected traffic demand
east of SE Croco Road."

A day or two before the commission meeting, the McPhersons learned of Paris'
report. According to the McPhersons, this was the first sign of potential difficulties with the
application. However, the McPhersons had addressed traffic problems in their application. On
average, MLI expected between 24 and 25 loads per day, and that the busiest times would be at
7 a.m. and 4 p.m. The application stated the belief that the traffic generated by Martin
Marietta's quarry operation was greater than the traffic expected from a C&D landfill. The
most common type of truck would be a single axle dump truck.

Consistent with his report, Paris testified in deposition that East 29th Street was
not built to handle its intended capacity and that the road in its current condition would not be
able to support a C&D landfill. When asked whether there were any alternative uses for the
land, Paris said, "Any, any use could be placed on that property. The ground has not been
reclaimed since its use as a quarry, but once reclaimed, regraded, anything could, could be
built on that property." When asked to give examples, Paris continued:

"The quarries immediately surrounding this particular site have all been
reclaimed, and they are currently being used as agricultural or pasture land. Several of
them I
believe also have houses on the property and the resulting pond from the quarry is just an amenity
for use with the residential property. I know of several other former quarries that--where the
actual pond is used as an amenity for an entire subdivision instead of a singular property. A site
such as this could also be used for, for parks. They could be used--well, once the property is
reclaimed, you know, the-- aside from some construction, you know, building construction issues
I mean anything could be built there." (Emphasis added.)

The Shawnee County Health Agency evaluated MLI's application. The report
noted that no groundwater was found on the site and that there was a very limited chance that
the drinking water supplies would be contaminated as a result of a C&D landfill on the
property. The potential impacts from dust, noise, and odor appeared to be sufficiently
controlled.

The record contains a letter from Verne Dow, a geologist, criticizing the geology
report submitted with MLI's application. According to Dow's letter, the report in MLI's
application was vague and might have been based on information collected from the wrong site.
Further, Dow's letter disputed that there was no groundwater in the area:

"I was Chief Geologist for the Kansas Division of Martin Marietta from January 1963 to April
1974 and worked often at the East Topeka quarry. During that time there was groundwater
seepage into the pits from points on the highwall to the base of the Ozawkie. Since groundwater
is present in the area it must be considered in the design."

The Zoning and Platting Committee meeting July 19, 2000

The Committee held a special meeting on July 19, 2000, to consider MLI's
application. The McPhersons' attorney, Mark Buck, spoke in favor of the application, along
with Kenny Blair and Bob Roenbaugh.

Buck noted that the traffic count for 29th Street was 2,817 cars daily and that an
increase of 25 to 30 cars per day was insignificant. He told the Committee that the C&D
landfill would not be visible from either 29th Street or Ratner Road. Kenny Blair, an engineer
with the firm of Cook, Flatt, and Strobel, said the use of the former quarry as a C&D landfill
would cause no problems and that the money generated could eventually be used to fund
reclamation of the property. Roenbaugh, who owns property adjacent to the McPhersons'
property, did not expect that the C&D landfill would make a poor neighbor. Twenty-four
citizens spoke in opposition to the application.

The Committee voted 7 to 0 against the CUP application.

In his deposition, Scott McPherson described the meeting of the Committee as a
"circus." He noted inaccurate information was presented, including allegations that MLI would
be burning tires, dumping environmentally sensitive materials and other toxic waste, and
polluting the water. Scott McPherson further stated that Dave Ireland, chairman of the
Committee, later told him that a vote to approve the application would have been "political
suicide."

The Board's Hearing August 14, 2000

The McPhersons understood that no member of the Board promised approval of
the application for a C&D landfill before the hearing. However, Ireland told the McPhersons
there were sufficient votes on the planning commission for approval and that he was going to
see to it that the application was approved. The McPhersons understood there were no
guarantees, as indicated by the following disposition testimony:

"Q. [To Virgil McPherson] Did they at any time tell you that there were no guarantees in the
conditional use permit process?

"A. I'm sure they did, because there isn't.

"Q. Okay. And you believe there aren't any guarantees in this process?

"A. Yeah."

At the Board's August 14, 2000 hearing, Paris spoke on behalf of the Planning
Agency staff. He summarized his report, focusing on the additional growth expected in the
area and the expectation that traffic would be a problem in 5 to 10 years. The McPhersons'
attorney spoke in favor of the application. Buck "acknowledged the Commission received
approximately 132 form letters, numerous telephone calls, faxes, and contacts from the
residents."

Again, Blair spoke in favor of the McPhersons' application. Blair told the Board
that the Kansas Department of Health and Environment (KDHE) would issue a permit, make
annual reviews, and determine annually whether to continue the permit. Phil Rosewicz, a
representative with KDHE, confirmed that the C&D landfill could be shut down for
noncompliance with applicable regulations.

There were no additional speakers in favor of the application, and Scott
McPherson admitted in his deposition testimony that the McPhersons presented all their
available information to the Board.

Twenty-four people spoke in opposition to the application. Charles Benjamin, an
attorney representing a homeowners association, showed the Board a picture of a C&D
landfill
managed by the McPhersons. Benjamin raised the concern that landfills, whether sanitary
landfills or C&D landfills, would attract dumping, i.e., people dumping their
things off by the
side of the road in the vicinity of the landfill.

Robert Badenoch, who described himself as an appraiser, told the Board he had
reviewed some appraisal literature and concluded that the value of property within a 5-mile
radius would be adversely affected by an active C&D landfill. Further, Badenoch mentioned
that property taxes, which are assessed based upon the value of the property, would decrease
and thereby place fiscal strain on the county. Badenoch's written submission to the Board
included a bibliography of eight articles addressing the impact landfills have on surrounding
property values.

Gary Reynolds, the Shawnee Heights School District Superintendent, spoke in
opposition. Reynolds said the C&D landfill would "impact four of their six attendance
centers
and indirectly impact the traffic to the other two facilities." Reynolds said the school board had
adopted a resolution supporting those opposed to the application.

Steve Bolton, the Shawnee County Director of Refuse, said if the existing C&D
landfill was closed, the county's operating expense at the Rolling Meadows Landfill would
increase by $40,000 annually.

The Board voted to reject MLI's application, with Commissioners Meier and
Ensley voting against the application and Commissioner Kane voting in favor of the application.
The Board's findings of facts noted the following potential problems:

"8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly
affect the timeframe governing the reconstruction of Southeast 29th Street to meet arterial street
standards. Based on the classification of Southeast 29th Street as a minor arterial road, the
current condition of this road appears to be substandard to meet the current and projected traffic
demand east of Croco Road.

"9. Southeast 29th Street is characterized as being hilly in this area and currently has minimal
shoulder areas in the event of traffic problems or accidents. While this is likely adequate for
normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic
at this location could substantially increase the risk of serious accidents occurring. Coupled with
the projected increases in traffic as this area develops, this presents a grave concern.

"10. Environmental concerns have been presented in regards to potential water pollution. A
large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the
proposed site for the construction and demolition landfill. Studies and borings completed were
reportedly done to the north of 29th Street and not in the specific area where the proposed landfill
is to be located. The applicant could not completely address the possibility or such contaminants
entering the groundwater system.

"11. Other uses for the property have been identified including pasture or agricultural use, a
recreational complex utilizing the lake on the property or potential future residential
development. While these alternative uses may not be as profitable as the proposed use, they are
legitimate alternative uses."

Commissioner Kane

Prior to the Board's hearing, Ireland brought Commissioner Kane to the 29th
Street and Ratner Road site and the McPhersons talked with her about the landfill project.
Commissioner Kane indicated that, on any give issue, if she was for the issue, Commissioners
Ensley and Meier were against the issue 99% of the time. The McPhersons spoke with
Commissioner Kane on multiple occasions. They had the impression Commissioner Kane
would vote in favor of the CUP application. Voth said Commissioner Kane was supportive of
the proposal.

Commissioner Meier

Commissioner Meier said the McPhersons initiated two to four conversations
regarding the application. Scott McPherson's deposition testimony indicates Commissioner
Meier spoke favorably about the project prior to the purchase of the 678 acres from Martin
Marietta. Voth confirmed in his deposition that Commissioner Meier was initially in favor of
the proposal.

After MWI purchased the property from Martin Marietta, Commissioner Meier
wrote a letter dated April 14, 1999, to the McPhersons. Commissioner Meier noted that he had
received telephone calls expressing concern that the McPhersons would be applying to operate a
C&D landfill on the property. Commissioner Meier stated that the purpose of his letter was
to
"gather information on [the potential application] prior to the Commission hearing [the]
request." In the letter, Commissioner Meier asked several questions, including a question about
traffic patterns of trucks seeking access to the landfill. Commissioner Meier noted that there
had been an application in 1998 to place a commercial building approximately 2 miles from
MLI's property, but he had nevertheless voted against the application, although the commercial
building was less obtrusive than the proposed operation of a C&D landfill. Commissioner
Meier ended the letter by suggesting that he believed "it is in the best interests of the
community to find more suitable locations where access will not be an issue."

At the Board's hearing, Commissioner Meier said that he had given thought to
this issue for months and that he had received numerous calls from people who did business
with the McPhersons saying there was no one with more integrity.

Commissioner Meier's deposition testimony indicates the calls regarding MLI's
CUP application were 20 to 1 against approval of the application.

Virgil McPherson said that he never spoke with Commissioner Meier on the
issue.

Commissioner Meier testified in his deposition that he did not attend any of the
meetings held by those opposed to the McPhersons' application. He said that at the time of his
vote, he was a lame-duck member of the Board. Regarding the political pressure to vote
against the application, Commissioner Meier testified that it was never a concern of his on votes
in 4 years.

Commissioner Ensley

The McPhersons met with Voth and Commissioner Ensley. According to Scott
McPherson, the meeting took place early in 2000. Commissioner Ensley said he was not in
favor of the conditional use permit. According to Voth, Commissioner Ensley disapproved of
using the property as a C&D landfill, having recalled that he received numerous calls from
people complaining of Martin Marietta's quarry operation and did not want to get those types of
calls anymore. According to Voth, the meeting with Commissioner Ensley was before the
purchase of the property from Martin Marietta:

"It was before they purchased the property. I wanted to be sure that Virgil
wasn't misled and bought that piece of property thinking that he was assured in any way, and
Ensley made this very clear at that meeting, too, that there were no assurances. He was welcome
to do whatever he wanted, but there was no assurances that he'd glean a permit on that, on that
property."

Commissioner Ensley said in his deposition that there was a "higher and best use
for the property . . . than a demolition landfill," but did not know what that use would be.
Commissioner Ensley explained why he would reserve his final decision until the public
hearing: "Because you don't have all the information. New information may come forth at a
public hearing that's not available to you prior to that."

Commissioner Ensley testified he did not attend any of the meetings held by the
interested landowners opposed to the McPhersons' application.

District Court

MLI filed a petition for review with the district court. The district court heard
oral arguments and filed its memorandum decision granting the Board summary judgment, and
MLI timely appealed.

Due Process

1. Prejudgment

MLI contends that the decision of the Board is void based upon a violation of
MLI's due process rights under the United States Constitution. The proceedings before the
Board with regard to MLI's CUP application were quasi-judicial. Thus, due process attached
to the proceedings and those proceedings must have been fair, open, and impartial. MLI's
challenge relates to impartiality and specifically to the statements made by Commissioners
Meier and Ensley before the formal hearing. MLI claims that those statements established that
both commissioners had prejudged the merits of the application before all of the evidence was
presented at the formal hearing. The hearing and final decision was, according to MLI's
contention, unfair and tainted by the commissioners' prejudgment.

There are no Kansas cases on the issue of prejudgment in a zoning decision. The
Kansas Court of Appeals discussed a similar issue in reviewing a decision by the Kansas
Corporation Commission (KCC) involving the "conditional approval" of a settlement agreement
by all parties before an official hearing. Farmland Industries, Inc. v. Kansas Corporation
Comm'n, 24 Kan. App. 2d 172, 943 P.2d 470, rev. denied 263 Kan. 885
(1997). The question
posed by the court was whether the KCC's "conditional approval" of the agreement constituted
a prejudgment of the issues and violated due process of law. In its order of conditional
approval, the KCC noted that it had not issued a final order approving the agreement and that
"it would decide upon the reasonableness of the amended settlement agreement after hearing all
the evidence." 24 Kan App. 2d at 188. The court concluded that based upon the order itself,
the KCC remained open to additional evidence and denied the prejudgment claim. 24 Kan.
App. 2d at 188.

Farmland Industries echos a common thread running through most of the
quasi-
judicial proceedings cases involving prejudgment. See Annot., Disqualification for Bias or
Interest of Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R. 3d 694, §
6; 83 Am
Jur. 2d, Zoning and Planning § 601; Dennison, Zoning: Proof of Bias or Conflict of
Interest in
Zoning Decision, 32 Am. Jur. Proof of Facts 3d 531, § 15. Most cases support the
conclusion
that prejudgment statements by a decisionmaker are not fatal to the validity of the zoning
determination as long as the statement does not preclude the finding that the decisionmaker
maintained an open mind and continued to listen to all the evidence presented before making the
final decision. See O&G Industries v. Planning & Zoning Commission, 232
Conn. 419, 430,
655 A.2d 1121 (1995); Madison River R. V. Ltd. v. Town of Ennis, 298 Mont. 91,
94, 994
P.2d 1098 (2000) ("To prevail on a claim of prejudice or bias against an administrative decision
maker, a petitioner must show that the decision maker has an 'irrevocable closed' mind on the
subject under investigation or adjudication."); Wagner v. Jackson Cty Bd of Zon.
Adj., 857
S.W.2d 285, 289 (Mo. App. 1993) ("Familiarity with the adjudicative facts of a particular
case, even to the point of having reached a tentative conclusion prior to the hearing, does not
necessarily disqualify an administrative decisionmaker, in the absence of a showing that the
decisionmaker is not capable of judging a particular controversy fairly on the basis of its own
circumstances.").

Barbara reviewed a zoning board's decision to grant an application for a
variance in a residential zone for the use of a motor lodge. Mancini, one of the objectors to the
variance before the zoning board and a petitioner on appeal, told Harris, a member of the
zoning board, that there would be an objection to the application for a variance. Harris, a
decisionmaker, replied, "What difference does it make, we are going to shove it down your
throat anyway." 85 R.I. at 154. On appeal, the objectors argued the board erred in refusing to
disqualify Harris because the evidence showed that Harris had prejudged the matter before it
and, therefore, could not render a fair and impartial decision. The court agreed, concluding
that the principles of impartiality had been violated. 85 R.I. at 156-57. The statement, "we are
going to shove it down your throat anyway," demonstrated that the zoning board member not
only prejudged the matter, but also intended to ignore evidence not supporting his position.

Unlike Barbara, Commissioner Meier's letter asked questions and invited
answers, which hardly suggests he precluded the consideration of further evidence on the
matter. Commissioner Ensley's testimony indicated that he reserved his decision until the
public hearing, which supports a conclusion that he considered all the evidence.

Lage reviewed a zoning boards' decision to grant a variance to permit the
construction and operation of a grocery store in a residential zone. One of the board members
had spoken in favor of the variance at a preliminary hearing before the planning commission.
The court's analysis included the following:

"His remarks, however, indicate a preconceived opinion about the desirability of the change,
and
that opinion must have influenced his vote on the variance. Whether his attitude had any bearing
on the decision of his comembers cannot be known. The vote of the other four members would
have been sufficient to grant the variance. In a somewhat similar situation, we held that a
member of a zoning commission should have disqualified himself. Mills v. Town Plan
& Zoning
Commission, 144 Conn. 493, 496, 134 A.2d 250. Evarts would have shown much better
judgment had he refrained from acting as a member of the board of appeals in this matter. The
court should have allowed the introduction in evidence of the portion of the transcript concerning
his statement before the planning and zoning commission. The statement could well have been
preliminary to development of basis for absolute disqualification." 148 Conn. at 604.

Lage also fails to lend support to MLI's contention of prejudgment. In that
case,
the expression of a preconceived opinion at the public hearing suggested more than
prejudgment--it suggested that the official had an interest in the matter and was acting more as
an advocate, rather than as a quasi-judicial official. The suggestion that the official in
Lage so
strongly prejudged the matter that he would not consider further evidence is simply not present
in the case we now review. In this case, the statements of Commissioners Meier and Ensley
were not meant to influence the process, but were meant to help the McPhersons by giving
them insight into the concerns harbored by the Board. Armed with this information, the
McPhersons had an opportunity to address these concerns.

The last case cited by MLI, McNamara, involved allegations that a
councilman's
vote for an ordinance regulating private and parochial schools in residential zones was
disqualified because of the councilman's self-interest. The court recognized the law generally
permitted political office holders to vote consistently with preelection statements, but pointed
out that the councilman had participated in legislation against the school at issue and also
owned property close to the school. The court found the councilman's motivation was not
based on civic interest but, rather, on his interest as a property owner. 60 N.J. Super. at
373-74. The "ultimate question" posed by the court was: "If as a citizen he opposed
the
establishment of the school, was [the councilman] qualified to vote on an ordinance?"
(Emphasis added.) 60 N.J. Super. at 377. The court concluded that the zoning decision
needed to be made "unaffected by personal considerations," an element the court found was
lacking in the case of the councilman: "But in the subject matter of the legislation he had a
well developed and intense private concern. Its very presence could have impaired his capacity
to act in the interest of the citizens at large." 60 N.J. Super. at 378.

The concern in McNamara involved personal interest. In this present case,
there
was no suggestion of personal interest. Again, the statements of Commissioners Ensley and
Meier were potentially beneficial to the McPhersons in that they served to highlight the
commissioners' concerns, which then could be addressed at the formal hearing with additional
evidence.

The facts of this case as set forth in detail above are instructive. There was no
indication that Commissioners Ensley and Meier failed to keep an open mind or failed to
consider all the evidence. While Commissioner Meier sent a letter suggesting his opposition to
the application, he asked a number of questions, which suggested he might be persuaded to
support the application if certain facts were established. Further, in the case of Commissioner
Ensley, while his statements indicated stronger opposition to the application, he testified in his
deposition that he reserves final judgment for the hearing because of the potential that new
evidence might surface. Based upon all the circumstances, we conclude that there was no
prejudgment in this case.

2.Ex Parte Communications

With respect to theex parte communications, it should be noted that the
parties
must be informed of the evidence submitted for consideration and must be provided an
opportunity to respond and rebut the evidence. Suburban Medical Center. v. Olathe
Community Hosp., 226 Kan. 320, 331, 597 P.2d 654 (1979). The American Jurisprudence,
Second, encyclopedia notes that "a local legislator may confer ex parte with persons
interested
in a proposed zoning amendment." 83 Am. Jur. 2d, Zoning and Planning § 602. But in the
present context, ex parte communications come under stricter review:

"However, when ex parte contacts are present in the context of quasi- judicial
zoning decisions,
such as variances and special use permits, courts will be more receptive to challenges to decisions
on grounds of zoning bias. Still courts may simply try to avoid the issue altogether by
concluding that the ex parte communications were eventually made part of the record decision, so
that there was no denial of the due process right to a fair and impartial hearing." 32 Proof of
Facts 531, § 16.

This court in In re Petition of City of Overland Park for Annexation of Land,
241
Kan. 365, 736 P.2d 923 (1987), considered ex parte contacts in the context of review of a
district court decision affirming the Johnson County Board of County Commissioners' decision
to permit Overland Park to annex property. The court found the parties opposed to the
annexation had an opportunity to respond to the matters involved in the communications
between the City and the Board and also noted that the Johnson County Board had received ex
parte communications from those opposed to the annexation. 241 Kan. at 371-72.

The testimony of MLI's attorney before the Board suggests he knew letters were
being sent to the commissioners. There is no suggestion in the record or in the briefs that
matters contained in the letters or discussed in any other ex parte communications were not
disclosed to MLI. The McPhersons indicated that they had presented the Board all the
information they had available. Further, the inconsistency in MLI's positions on appeal and
prior to the Board's decision when it lobbied for its application is worthy of consideration. Had
the Board voted in favor of the CUP application, the same argument could be made by those
opposed to the application, citing the McPhersons' conversations with board members both at
the site and in a private meeting.

Our review convinces us that neither prejudgment nor ex parte communications
rendered the final decision of the Board unlawful. MLI fails to establish that the proceedings
before the Board denied it due process of law.

Reasonableness

Before beginning the reasonableness analysis under Golden, MLI's complaint
that the Board's failure to make timely formal findings of fact should be considered. Paris, the
county planner, worked on the findings of fact as late as winter 2000. Initially, it should be
noted that formal findings of fact are not required. Board of Johnson County Comm'rs v.
City
of Olathe, 263 Kan. 667, 678, 952 P.2d 1302 (1998). It is more important that there exists
a
record of what the Board considered before making its decision so that the reviewing court is
not left in a "quandary" as to why the decision was made. See 263 Kan. at 679. No harm was
found in a similar situation in Landau v. City Council of Overland Park, 244 Kan.
257, 767
P.2d 1290 (1989).

In Landau, the findings of fact had not been made until 6 months after the
relevant decision and after the aggrieved party had filed a notice of appeal. The court still
determined that at least two of the Golden factors had been considered. Further, the
Landau
court noted the minutes revealed that the views expressed by citizens at the public hearing
addressed the additional Golden factors. Landau, 244 Kan. at 262-63.
Similarly, the planning
staff in the present case did not recommend approval of the application and, as the analysis
below shows, the citizens' views address additional Golden factors. As in
Landau, the record
does not leave this court in a quandary as to what motivated the Board to act, and the argument
that these findings were inadequate because they were made after the Board's hearing fails.

MLI contends that the Board's denial of the CUP was unreasonable and
arbitrary. The factors announced in Golden for testing the reasonableness of zoning
decisions
are applicable in reviewing the Board's decision. See K-S Center Co. v. City of Kansas
City,
238 Kan. 482, 495, 712 P.2d 1186 (1986) ("We have consistently held, in reviewing the grant
or denial of a special use permit, the same test of 'reasonableness' applies as in rezoning
cases."). Just as the Board and the district court did, we consider the following
Golden factors
to test the reasonableness of the Board's denial:

(1) The character of the neighborhood.

The Board found that "[t]he site lies in a growing residential area with substantial
residential development just to the west of the proposed location." The Board heard testimony
from many of the people who own houses near the proposed C&D landfill site. Thus, the
Board was reasonable when it concluded the neighborhood was residential.

(2) The zoning and uses of properties nearby

The Board noted the area surrounding MLI's proposed site is zoned as RR-1.
MLI does not dispute this finding but, rather, emphasizes that its property has been used for
quarrying activities, which are also classified along with a C&D landfill as a use permitted by
a
conditional use permit. According to MLI, the operation of a C&D landfill is a
nonconforming
use and, thus, has become a vested right.

While this Golden factor relates to the "zoning and uses of properties
nearby,"
224 Kan. at 598, we pause briefly to address MLI's argument concerning nonconforming use.
MLI argues its operation of a C&D landfill would be a nonconforming use and, therefore, a
vested right. See Goodwin v. City of Kansas City, 244 Kan. 28, 32, 766 P.2d 177
(1988). The
district court noted that under the possible uses permitted by a conditional use permit, operation
of a quarry, City of Topeka-Shawnee County Comp. Zoning Reg., App. C, Art. III, §
48-3.02(c)(5) (1999), and operation of a C&D landfill, City of Topeka-Shawnee County
Comp.
Zoning Reg., App. C, Art. III, § 48-3.02(c)(17), are under separate subsections. The
operation of a quarry under § 48-3.02(c)(5) includes a number of various activities:
"Extraction, processing, storage, and sale of raw materials, including ore, minerals, sand, rock,
stone, gravel, topsoil, fill dirt, and other materials delivered by quarry, mining, dredging, or
stripping operations." With respect to nonconforming uses, the Topeka-Shawnee County
zoning regulations provide that a nonconforming use may be changed to another nonconforming
use of the same restricted classification. The regulations define classification as the "[d]ivision
of uses or activities into groups or subgroups for regulatory purposes." (Emphasis
added.)
City of Topeka-Shawnee County Comp. Zoning Reg., App. C, Art. XXXV (1999). However,
the right to a nonconforming use is to be strictly construed. Goodwin, 244 Kan. at
32. Thus,
under a strict construction of nonconforming use, the operation of a C&D landfill is not a
nonconforming use because not only is the operation of a C&D landfill substantially different
from the operation of a quarry, but also the C&D landfill is not within the various uses
classified in § 48-3.02(c)(5). However, assuming a valid nonconforming use existed at one
time, if the use has been discontinued for a year, the privilege of nonconforming use would be
lost. Martin Marietta's quarry operations ended in 1993, but material continued to be removed
until 1998. MLI's application was made in March 2000. Thus, even if a C&D landfill would
be a nonconforming use, any such use had long since become unavailable under the zoning
regulations.

Thus, MLI's emphasis on the zoning classification of its own property misses the
mark. The evidence of record supports the Board's finding that the nearby properties are zoned
and used as residential areas.

(3) The suitability of the subject property for the uses to which it has been
restricted.

With respect to the alternative uses for the property, the Board made the
following finding:

"11. Other uses for the property have been identified including pasture or agricultural use, a
recreational complex utilizing the lake on the property or potential future residential
development. While these alternative uses may not be as profitable as the proposed use, they are
legitimate alternative uses."

MLI maintains the property can only be used as a C&D landfill. The Board, however,
disagreed and identified several alternative uses of the property in question. While the Board
conceded that the property in its current state and until the it has gone through a reclamation
process, was unsuitable for residential use, the Board did not limit its consideration to
residential use. As indicated by finding No. 11, several alternative uses were found to exist.
There is substantial competent evidence of record to support the Board's finding regarding
alternate uses of the property in question. Given our standard of review, we conclude that the
Board's finding that the property in question was suitable for a number of alternative uses is a
reasonable conclusion.

(4) The extent to which removal of the restrictions will detrimentally affect
nearby property.

The Board did not make a specific finding with respect to the detrimental effect
the operation of a C&D landfill would have on the nearby property. The Board reserved the
traffic and environmental concerns for the public health, safety, and welfare factor below, and
focused instead on the potential dirt, noise, trash, and potential decline in property values. It
its brief, MLI inserts the word "neighborhood" into the analysis and repeats the argument that
the surrounding areas were used for quarrying activities.

Despite the fact that the Board did not make any specific findings with respect to
the detrimental affect on nearby properties, the Golden factors are suggestions only
and each
Golden factor need not be considered to make the ultimate decision reasonable. See
Landau,
244 Kan. at 263.

(5) The length of time the subject property has remained vacant as zoned.

The Board noted that quarrying activities ceased in 1993. Thus, at the time of
the Board's vote, the property had been vacant for 7 years. However, Martin Marietta had
continued to remove material from the site until 1998. Thus, the property had been idle for 3
years at the time of the Board's hearing. Given the Board's finding regarding alternative uses
of the property, its conclusion that there was no reason to believe that the property would
remain vacant was a reasonable conclusion supported by the evidence of record.

(6) The relative gain to the public health, safety, and welfare by the destruction
of the value of plaintiff's property as compared to the hardship imposed upon the individual
landowner.

With respect to the gain to safety by denying MLI the CUP application to
operate a C&D landfill, the Board made the following findings:

"5. Southeast 29th Street is a primary route for students traveling to and from Shawnee
Heights
High School, Shawnee Heights Middle School, and Tecumseh Elementary School during early
morning and midafternoon hours. The applicant projected that the busiest hours of operation of
the construction and demolition landfill site would be between 7:00 a.m. and 8:00 a.m. and again
in the afternoon between 4:00 p.m. and 5:00 p.m. These projected hours coincide with those
times that students are traveling to school in the morning, and in many cases, leave school after
extracurricular activities in the afternoon.

. . . .

"7. As residential development continues to grow, likely eastward, the significance of
Southeast
29th Street as an arterial street will increase significantly.

"8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly
affect the timeframe governing the reconstruction of Southeast 29th Street to meet arterial street
standards. Based on the classification of Southeast 29th Street as a minor arterial road, the
current condition of this road appears to be substandard to meet the current and projected traffic
demand east of Croco Road.

"9. Southeast 29th Street is characterized as being hilly in this area and currently has minimal
shoulder areas in the event of traffic problems or accidents. While this is likely adequate for
normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic
at this location could substantially increase the risk of serious accidents occurring. Coupled with
the projected increases in traffic as this area develops, this presents a grave concern.

"10. Environmental concerns have been presented in regards to potential water pollution. A
large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the
proposed site for the construction and demolition landfill. Studies and borings completed were
reportedly done to the north of 29th Street and not in the specific area where the proposed landfill
is to be located. The applicant could not completely address the possibility or such contaminants
entering the groundwater system."

MLI separately addresses the traffic concerns prior to addressing the Golden
factors. Under this sixth Golden factor, MLI focuses on the loss the county will
suffer if the
application is denied. This argument implies that there are no alternative sites for a C&D
landfill in Shawnee County or any other sufficiently close location.

With respect to the traffic concerns, the Board found the roads used by trucks
driving to or from the C&D landfill would also be used by people driving to or from one of
three schools in the area. Further, the Board found that the times of heaviest traffic to and
from the C&D landfill would in part overlap with the times of busiest traffic to and from the
schools.

MLI disputes the reasonableness of the findings. MLI points out that the county
public works department granted heavy truck certification and approval for trucks driving to
and from the proposed C&D landfill site. MLI argues the 25 additional trips per day do not
amount to significant concern. Further, MLI stresses the fact that the traffic associated with the
C&D landfill would be less than that associated with the quarry.

MLI cites Taco Bell v. City of Mission, 234 Kan. 879, 678 P.2d 133 (1984),
to
support its position. This court in Taco Bell affirmed the district court, which had
found the
City of Mission acted unreasonably, arbitrarily and capriciously in a zoning decision. With
regard to traffic, this court found the City of Mission was unreasonable in citing traffic
concerns because the evidence showed the development would not attract any additional traffic.
234 Kan. at 890.

Taco Bell can be distinguished from the situation in which a particular use
attracts traffic. That is exactly the situation with MLI's proposed C&D landfill, which would
attract traffic. Therefore, traffic is a valid concern. Further, Taco Bell stands for the
proposition that citations to general terms such as "traffic" are, without more, insufficient. See
234 Kan. at 891 ("We warned in Golden of the danger of a governing body relying
on such
general considerations as 'traffic problems' and 'traffic congestion' to control zoning
decisions."). In this case, there would be a combination of increased traffic along with specific
safety concerns, i.e., the combination of truck traffic with school traffic.

The traffic at issue in this case is different from that in Taco Bell. Passenger
cars were not in issue in this case, but rather the issue concerns larger trucks loaded with
materials bound for a C&D landfill. The Paris report noted that the route has been used by
students to attend school or school functions and that this use was expected to increase in the
future. The report also noted that the urbanized area of Topeka was growing eastward and that
"special consideration should be given not only to observed current traffic conditions in the
area, but also to the projected traffic patterns."

With regard to the county public work's approval of the truck route, it is not
clear how the approval relates to traffic safety as opposed to the road's capacity to
accommodate the trucks without damage.

With respect to the environmental concerns, the Board points out how geologist
Dow's review of MLI's application questioned MLI's conclusion that there was no concern for
groundwater contamination. Dow's letter indicated that there was groundwater seepage at the
"East Topeka" quarry. Buck told the Board that further investigation in response to Dow's
letter tended to show Dow's analysis was incorrect. However, Rosewicz, a representative with
the KDHE, told the Board that while the risk was minimal from this type of landfill, he could
not be certain that there would be no groundwater contamination.

Chris Etcheson, an employee with the Shawnee County Health Agency, told the
Board, in response to a question from Commissioner Kane, that there was a "possibility for
airborne particles from asbestos in an operation of that type" despite the prohibition from
dumping asbestos in a C&D landfill. Commissioner Meier asked Etcheson whether the
McPhersons' other C&D landfill had ever contained any impermissible materials, and
Etcheson
said that this had happened in the past.

Kim Nettleson, a recycling coordinator, said there would be some dust associated
with the C&D landfill.

Since "relative" gain implies a balance between the advantages and disadvantages
of the denial of the application, the above disadvantages to the application should be first offset
by the advantages to granting the application before comparing that "relative gain" to the
hardship imposed upon the landowner. MLI emphasizes the county's need for an additional
C&D landfill to remain competitive in economic development. The Board found that other
sites were available for a C&D landfill and that those sites would have the added benefit of
not
being located in growing residential areas.

Regarding the hardship imposed on MLI, the evidence showed MLI paid less
than $10,000 for its property. Of course, this hides the fact that MWI, MLI's parent, paid
Martin Marietta between $500,000 and $600,000 for the property. Further, MLI points out the
potential lost revenue amounts to $7.2 million.

The inquiry as to reasonableness should focus on the evidence presented to the
Board. See Combined Investment Co. v. Board of Butler County Commr's, 227 Kan.
17, 28,
605 P.2d 533 (1980), ("Whether action is reasonable or not is a question of law, to be
determined upon the basis of the facts which were presented to the zoning authority."). As the
Board points out, the information regarding MWI's and MLI's investments was not presented to
the Board.

In conclusion, MLI might dispute the Board's judgment of these factors, but it is
clear the Board considered the evidence presented and made its decision. We conclude that the
Board's decision is reasonable and not one so wide of the mark that the decision lies outside the
realm of fair debate.

(7) Recommendation of the permanent or professional staff.

With regard to professional staff recommendations, the Board noted the
following:

"14. The Topeka-Shawnee County Metropolitan Planning Department Staff recommended
DISAPPROVAL of the proposal in its report to the Metropolitan Planning Commission.

"15. At a public hearing on July 19, 2000, the Zoning and Platting Committee of the
Topeka-Shawnee County Metropolitan Planning Commission considered the proposal and at the
conclusion of the hearing recommended unanimously to the Board of Shawnee County
Commissioners that the request be DISAPPROVED by a vote of 0-7-0-0."

MLI concedes the professional staff factor weighs against its position but emphasizes that
Paris,
the planner, was inexperienced and that he admitted that the question was a close one.

(8) The conformance of the requested change to the adopted or
recognized
master plan.

With respect to the plan, the Board made the following findings:

"6. The subject property lies approximately 1/2 mile east of the current urban services
boundary
as reflected on the 2010 Future Land Use Plan, and approximately 1/4 mile east of the proposed
Growth Management Plan currently being drafted by the Metropolitan Planning Staff."

The Paris report confirms the above. Paris wrote that "[u]nder both the currently adopted
future land use plan, and the draft Growth Management Plan, urban density development is
projected, and in fact encouraged to within a close proximity to the subject property."
(Emphasis added.)

Conclusion

This court is limited to determining the reasonableness of the Board's action. An
action is unreasonable when it is so arbitrary that it can be said it was taken without regard to
the benefit or harm involved to the community at large, including all interested parties, and was
so wide of the mark that its unreasonableness lies outside the realm of fair debate.
Combined
Investment, 227 Kan. at 28. We are limited to determining whether the given facts could
reasonably have been found by the Board to justify its decision. Golden, 224 Kan. at
595-96.
The above analysis of each factor should not be viewed as a reweighing of the evidence but,
rather, a process of pointing out how the Board's findings of facts were reasonable in light of
the record on appeal. While there is evidence in the record to support the granting of MLI's
application--indeed the Board's vote was not unanimous--in light of our standard of review, we
will not disturb the Board's decision in this case.

MLI raises two additional arguments concerning the Board's denial of a
conditional use permit to establish and operate a C&D landfill. The first claim is that the
denial
amounted to a taking under the Fifth and Fourteenth Amendments to the United States
Constitution. The second argument contends that MLI is entitled to relief under 42 U.S.C.
§
1983 (2000). Both arguments lack merit.

Taking of Property

MLI knew that the property it purchased from Martin Marietta was zoned
residential. Before the purchase, its parent corporation, MWI attempted to make the deal
contingent upon successful rezoning of the property for a C&D landfill. Martin Marietta
rejected the contingency, and the property was nevertheless purchased. More importantly,
there are alternative uses for MLI's property. While the alternatives might not be as lucrative
as the operation of a C&D landfill, the alternatives exist and preclude a finding that the
Board
has taken the entire value of the property.

The Fifth Amendment to the United States Constitution restricts governmental
taking of property: "[N]or shall private property be taken for public use, without just
compensation." That provision applies to the States through the Fourteenth Amendment.
Chicago, Burlington &c. R'D v. Chicago, 166 U.S. 226, 241, 41 L. Ed. 979, 17
S. Ct. 581
(1897).

"But our holding [in Lucas] was limited to 'the extraordinary circumstance
when no productive
or economically beneficial use of land is permitted.' [Citation omitted.] The emphasis on
the
word 'no' in the text of the opinion was, in effect, reiterated in a footnote explaining that the
categorical rule would not apply if the diminution in value were 95% instead of 100%. [Citation
omitted.]" (Emphasis added.)

If the entire value of the property is not destroyed, then the analysis under Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646,
reh.
denied 439 U.S. 883 (1978), is appropriate. Tahoe-Sierra, 152 L. Ed 2d at
545.

The Court in Penn Central considered whether restrictions imposed by the
City
of New York, which prevented substantial additions to Grand Central Station, amounted to a
taking. The Court noted the difficulty involved in determining what amounts to a taking and
that the "ad hoc, factual inquiries" of determining when "'justice and fairness' require that
economic injuries caused by public action be compensated by the government, rather than
remain disproportionately concentrated on a few persons." 438 U.S. at 123-24 (citing
Goldblatt v. Hempstead, 369 U.S. 590, 594, 8 L. Ed. 2d 130, 82 S. Ct. 987 [1962]).
The
Court identified factors that help in the inquiry: (1) the economic impact of the regulation,
focusing on the investment-backed expectations of the owner; and (2) the character of the
governmental action, i.e., whether a physical invasion is involved, rather than an
interference
"adjusting the benefits and burdens of economic life to promote the common good." 438 U.S.
at 124. The Court went on to note the following with regard to zoning laws:

"More importantly for the present case, in instances in which a state tribunal
reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted by
prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that
destroyed or adversely affected recognized real property interests. [Citation omitted.] Zoning
laws are, of course, the classic example, [citations omitted] which have been viewed as
permissible governmental action even when prohibiting the most beneficial use of the property.
[Citations omitted.]

"Zoning laws generally do not affect existing uses of real property, but 'taking'
challenges have also been held to be without merit in a wide variety of situations when the
challenged governmental actions prohibited a beneficial use to which individual parcels had
previously been devoted and thus caused substantial individualized harm." [Citation omitted.]
438 U.S. at 125.

The owners of the terminal in Penn Central argued the airspace above the
terminal amounted to
a "valuable property interest," which the city had taken. 438 U.S. at 130. The Court rejected
this argument:

"Apart from our own disagreement with appellants' characterization of the
effect of the New York City law, . . . the submission that appellants may establish a 'taking'
simply by showing that they have been denied the ability to exploit a property interest that they
heretofore had believed was available for development is quite simply untenable. Were this the
rule, this Court would have erred not only in upholding laws restricting the development of air
rights, [citation omitted] but also in approving those prohibiting both the subjacent, [citation
omitted] and the lateral [citation omitted] development of particular parcels. [Citations omitted.]
'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to
determine whether rights in a particular segment have been entirely abrogated. In deciding
whether a particular governmental action has effected a taking, this Court focuses rather both on
the character of the action and on the nature and extent of the interference with rights in the
parcel as a whole - here, the city tax block designated as the 'landmark site.'" 438 U.S. at
130-31.

The Court noted that a regulation does not amount to a taking merely because it significantly
diminishes the value of the property. 438 U.S. at 131.

This court in Jack v. City of Olathe, 245 Kan. 458, 470, 781 P.2d 1069
(1989),
held that there is not a taking following the failure to rezone:

"The cases are further distinguishable from the present case in that the various governmental
bodies involved had taken affirmative action to restrict and take away a right to the use of
property which already existed. In the present case the action of the City was merely to deny the
expansion of the existing right to use the property. No taking of the plaintiffs' property has been
shown in the present case."

We conclude that the Board's denial was not a taking under the Fifth Amendment
to the United States Constitution but was a decision to deny the expansion of the existing right
to use the property.

42 U.S.C. § 1983

MLI contends it is entitled to relief under 42 U.S.C. § 1983, which provides as
follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any
State . . . subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or declaratory relief was unavailable."
(Emphasis added.)

One seeking relief under 42 U.S.C. § 1983 must satisfy the following two requirements:
(1)
Some person must deprive the plaintiff of a federal right; and (2) that person must have acted
under color of state or territorial law. See Cook v. City of Topeka, 232 Kan. 334,
340, 654
P.2d 953 (1982). MLI fails to satisfy the first requirement by failing to establish that the Board
deprived it of a federal right.